This is the motion of Scott C. Chevalier and his wife Pina Chevalier for
permission to file a late claim pursuant to §10.6 of the Court of Claims
Act (the "Act"). In the proposed claim, it is alleged that on April 28, 2003,
Mr. Chevalier, a motorcyclist, was struck by a vehicle negligently operated by
Bert R. Green, Jr., a member of the New York State National Guard, also known as
the State militia. Ordinarily, in determining whether to grant such a motion,
the six factors enumerated in the Act would be considered: whether (1)
defendant had notice of the essential facts constituting the claim; (2)
defendant had an opportunity to investigate the circumstances underlying the
claim; (3) the defendant was substantially prejudiced; (4) the claimant has any
other available remedy; (5) the delay was excusable and (6) the claim appears to
be meritorious. In this case, however, a more fundamental issue must first be
addressed – whether this Court has jurisdiction over the proposed
Section 8-a of the Act provides that the State waives liability for the torts
of members of the organized militia "except while engaged in the active service
of the state pursuant to sections five, six or seven of the military law."
Section 6 of the Military Law authorizes the Governor in cases of emergency to
order members of the National Guard to active duty in State service. The events
of September 11, 2001 obviously gave rise to such an emergency, and Mr.
Chevalier was called to service pursuant to the Governor's authority, as
effectuated by executive order. See 9 NYCRR §5.113 et seq.
Defendant has submitted various documents, including Mr. Green's Orders,
demonstrating that he was on active duty pursuant to §6 of the Military
Law, from April 15, 2003 through April 28, 2003, i.e., through the date
of the accident. See exhibit C to defendant's affirmation in opposition. At
the time in question, Mr. Green had been ordered to transport a soldier from
Fort Hamilton in Brooklyn to Penn Station in Manhattan.
Claimants argue that such documents contain "discrepancies," e.g.,
- - without any basis - - that since the accident occurred two hours after
Green's scheduled departure time from Fort Hamilton, discovery is required to
see if he had "engage[d] in a frolic." See ¶21 of claimants' reply
affirmation. Claimants also argue that "there is no logical reason why
Specialist Green would be traveling on Water Street at or near its intersection
with Wall Street in his efforts to return to Fort Hamilton in the most direct
manner." Id., ¶25. Such arguments are unavailing, and thus the
State has not waived its immunity in this case. See, e.g., Nationwide
Property Casualty Insurance Company a/s/o Eric C. Lienhop v State of New
York, Ct Cl, December 2, 2003 (unreported, motion no. M-66582, Nadel, J.),
attached as exhibit B to defendant's affirmation in opposition.
For the foregoing reasons, having reviewed the parties'
and having heard oral argument, IT
IS ORDERED that motion no. M-69469 be denied.